Duvall v. State , 65 O.B.A.J. 1202 ( 1994 )

LANE, Judge

dissenting:

I dissent to the part of this order that denies Appellant’s motion to reconsider appeal. I would grant this only for the purpose of allowing this Court to reconsider the reasoning in the original order.¹ I would dismiss the appeal for failure to file the necessary documents, but I do not believe that a petition in error is included in the list of necessary documents in an appeal from denial of post conviction relief in a capital case.

It is a fundamental rule of construction that a specific statute controls over a general statute. See, Stiles v. State, 829 P.2d 984 (Okl.Cr.1992). In 1987, the legislature passed 22 O.S.1991, § 1089(C)(4) specifying what was necessary to perfect an appeal in a situation like the current matter. It does not require a petition in error, but does require the appellant to file a copy of his notice of intent to appeal and designation of record with the Clerk of this court. It is my opinion that this filing was intended to be the triggering device that confers jurisdiction for appeal. As a practical matter both this filing and a petition in error serve the same purpose. Both notify the court that there is an appeal in the works. Under current rules a petition in error does nothing more.

1 . Unfortunately, I was unable to participate in the original order. If I had, I would have concurred in result for the reasons I now express.